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EXHIBIT 10.12
AGREEMENT
1. This agreement ("Agreement") is entered into between Xxxxxx X.
Xxxxxx ("Xxxxxx") and Xxxxx'x Jewelers, Inc., a California corporation
("Barry's"), to set forth the severance arrangements Barry's has made for
Xxxxxx and to resolve all other matters between Barry's and Xxxxxx.
Specifically, the purpose of this Agreement is, among other things, to (i)
set forth the parties' agreements concerning severance and other benefits
to be provided to Xxxxxx pursuant to the Employment Agreement between the
parties dated as of April 8, 1996 (the "Employment Agreement"), as well as
other benefits described herein, and (ii) provide for mutual general
releases. A copy of the Employment Agreement is attached hereto as Exhibit
"A".
2. The parties agree and acknowledge that Xxxxxx resigned as an
officer, director and employee of Barry's (and each of its subsidiary and
affiliated entities, as applicable) effective as of February 13, 1997.
3A. Pursuant to the Employment Agreement (as modified herein), Barry's
agrees to provide the following severance and other benefits to Xxxxxx:
3A.1 In accordance with Section 4.3(x) of the Employment
Agreement, $342,692.33 (the "Severance Amount"), computed as the amount of
salary at Xxxxxx'x rate of salary in effect immediately prior to February
13, 1997, for the period from February 17, 1997 through April 8, 1998,
payable in cash as follows (subject to the last paragraph of this Section
3A): Xxxxxx will receive monthly or biweekly payments from Barry's in the
same amounts and with the same periodicity that salary was paid to Xxxxxx
immediately prior to February 13, 1997, commencing with the next regular
payroll after that date and through and including a final payment (on or
about April 8, 1998) to fully satisfy the Severance Amount. The Severance
Amount does not include Xxxxxx'x salary for the period up through and
including February 16, 1997, which he acknowledges has previously been paid
in cash by Barry's.
3A.2 In accordance with Section 3.2 and Section 4.3 of the
Employment Agreement, the 10,000 shares of restricted Common Stock of
Barry's referred to therein is deemed immediately and fully vested as of
February 13, 1997. Accordingly, Barry's has paid Xxxxxx $8,230.63 in cash,
representing the special bonus in respect of certain tax obligations of
Xxxxxx (fully "grossed up" for taxes) corresponding to one-half (1/2) of
the restricted stock referred to in said Section 3.2.
3A.3 In accordance with Section 3.2 and Section 4.3 of the
Employment Agreement, the stock options referred to therein are hereby
deemed immediately and fully vested as of February 13, 1997.
3A.4 In accordance with Section 3.7 and Section 4.3 of the
Employment Agreement and applicable law, Barry's will pay Xxxxxx $2,464.62
in cash promptly following the execution date hereof, representing Barry's
obligation for accrued vacation benefits.
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3A.5 In accordance with Section 3.5 and Section 4.3 of the
Employment Agreement, for the period from February 13, 1997 through April
8, 1998, Xxxxxx shall continue to be included, at Barry's expense, in
Barry's medical insurance plan. This benefit shall be effected by Xxxxxx'x
election of COBRA coverage; Barry's will then pay or reimburse Xxxxxx for
the cost of the election of such coverage during the period specified in
the preceding sentence.
In addition to the foregoing items of severance and benefits, nothing in
this Agreement shall be deemed to affect Xxxxxx'x benefits and rights under
Barry's 401(k) plan and deferred compensation plan for senior managers (the
"Tophat Plan"); all rights and elections that may be available to Xxxxxx
under the terms of those plans with respect to his account interests
therein shall continue to be available to him. Among other things, in the
event that Barry's elects to terminate the Tophat Plan, then Xxxxxx shall
have all of the rights specified therein in connection with a termination.
In addition, in the event of such a termination of the Tophat Plan, Barry's
agrees that it will establish a separate "rabbi trust" for maintenance of
funds previously elected to be deferred for tax purposes by Xxxxxx, to
enable Xxxxxx to continue to achieve deferral to the maximum extent
reasonably achievable under applicable tax law. All amounts payable to
Xxxxxx and other benefits to be provided to Xxxxxx in accordance with this
Section 3A and Section 3B below shall be subject to withholding in
accordance with applicable law.
3B. In addition to the benefits provided for in the Employment
Agreement, Barry's agrees to provide the following benefits to Xxxxxx:
3B.1 Barry's will pay the fees of an outplacement services
firm for outplacement services to be provided to Xxxxxx, up to a maximum
of $25,000, upon presentation of invoices and/or other appropriate
supporting documentation evidencing such fees.
3B.2 For the period from February 13, 1997 through April 8,
1998, Xxxxxx shall continue to be included, at Barry's expense, in Barry's
life insurance and disability insurance plans.
3B.3 For the period from February 13, 1997 through April 8,
1998, Barry's shall continue to provide the same automobile-related
benefits to Xxxxxx as provided under the existing Employment Agreement
(including lease payments and payment of maintenance, gas, oil, insurance
and license as provided in the existing Employment Agreement).
3C. In the event of Xxxxxx'x death prior to the full Severance
Amount having been paid as provided in Section 3A above, Barry's shall be
obligated to continue to provide such benefit to Xxxxxx'x spouse, subject
to the terms and elections available under the Tophat Plan, as applicable.
4. Xxxxxx agrees that he will comply with Section 9 of the
Employment Agreement, notwithstanding the termination of his employment by
Barry's. In this regard, Barry's acknowledges that Xxxxxx has made himself
reasonably available to Barry's for the purpose of returning confidential
information to Barry's as provided in said Section 9.
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Xxxxxx acknowledges, however, that Barry's has no means of independently
verifying full compliance by Xxxxxx with said Section 9, and as a result
Xxxxxx agrees that he will in the future fully comply with the document
return and other provisions of said Section.
5. Xxxxxx agrees that any and all claims or obligations, including any
claim for violation of any state or federal statute (such as statutes
concerning discrimination based on disability or perceived disability,
race, sex, or national origin), which he may have against Barry's are fully
and completely settled by this Agreement, and all liability or potential
liability on any such claim is hereby released. This release of claims
includes claims against Barry's directors, officers, employees and
representatives (collectively, "Representatives"), and against any and all
present and future affiliated companies of Barry's and their respective
Representatives. This release also includes all claims arising out of
Xxxxxx'x employment with Barry's and the termination of that employment,
including all rights and benefits under the Employment Agreement. Xxxxxx
does not, by signing this Agreement, release claims with respect to
fulfillment of the promises contained in this Agreement. Barry's (on behalf
of itself and its present and future affiliated companies and their
respective Representatives) similarly agrees that any and all claims or
obligations which it may have against Xxxxxx relating to Xxxxxx'x service
as an officer, director and employee of Barry's are fully and completely
settled by this Agreement, and all liability or potential liability on any
such claim is hereby released. Barry's does not, by signing this Agreement,
release claims with respect to fulfillment of the promises contained in
this Agreement.
6. Except as specifically noted in Section 5 above, each of Barry's
and Xxxxxx waives any and all rights it/he may have to invoke, or in any
other way to seek the benefits of, Section 1542 of the California Civil
Code (or any other similar statute). Section 1542 provides as follows:
A general release does not extend to claims which the creditor does
not know or suspect to exist in his favor at the time of executing the
release, which if known by him must have materially affected his
settlement with the debtor.
7. Xxxxxx understands and acknowledges that (a) this Agreement
constitutes a voluntary waiver of any and all claims he has against Barry's
as of the date of his execution of this Agreement, including claims under
the Age Discrimination in Employment Act of 1967, 29 U.S.C. Sec. 621 et
seq.; (b) he has waived any and all such claims pursuant to this Agreement
and in exchange for consideration, the value of which is substantial; (c)
he has been, and is now, advised to consult with an attorney concerning
this Agreement before signing it; (d) he has been, and is now, informed
that he has a period of at least 21 days to consider the terms of this
Agreement (though he need not take the full 21 days if he, in his sole
discretion, does not wish to do so); and (e) he may revoke this Agreement
at any time during the 7 days following the date of his signing of the
Agreement, and this Agreement shall not become effective or enforceable
until the eighth day after Xxxxxx'x signing of the Agreement. If Xxxxxx so
revokes this Agreement, Xxxxxx agrees and acknowledges that Barry's will
likewise not be bound by the agreements set forth herein and will reserve
the right, among others, to assert that Xxxxxx'x termination is for "cause"
under the Employment Agreement, seek a return of the Severance Amount and
other benefits described in Section 3 above and seek other remedies
available at law or in equity.
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8. Each party agrees that this Agreement is confidential and neither
will voluntarily disclose its terms, except that Xxxxxx and the management
of Barry's may discuss the Agreement with their spouses, their attorneys,
and their tax advisers (including, in the case of Barry's management,
Barry's attorneys and tax advisers).
9. In connection with Xxxxxx'x separation from Barry's, Barry's is
providing a reference letter, addressed to Xxxxxx, in the form attached
hereto as Exhibit "B".
10. Xxxxxx promises that he will not in the future file a claim
against Barry's with respect to a matter released herein. Barry's promises
that it will not in the future file a claim against Xxxxxx with respect to
a matter released herein.
11. If either Barry's or Xxxxxx files a claim to enforce this
Agreement or a claim otherwise arising in any way out of this Agreement,
the claim will be decided by binding and final arbitration. The procedures
for conducting that arbitration will be decided by the parties.
12. Each party acknowledges that he or it has had an opportunity to
negotiate with regard to the terms of this Agreement, to receive advice
with regard to it, and carefully to read and consider the terms of the
Agreement before signing it.
13. This Agreement contains the entire agreement of Barry's and Xxxxxx
concerning the subjects covered in the Agreement. This Agreement supersedes
any previous discussions or agreements about those subjects.
Date:
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Xxxxxx X. Xxxxxx
Date:
-------------------- BARRY'S JEWELERS, INC.
By:
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Its:
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